Defense attacks death penalty in Erie stabbing case

This is a March 2012 file photo of James Duncan, center, being led into a preliminary hearing at Erie Central Court at the Erie County Courthouse on March 29. Duncan is accused in the murder of Nikkia Sawyer at Highpoint Towers in Erie in June, 2011.CHRISTOPHER MILLETTE/ERIE TIMES-NEWS

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Lawyers for capital murder defendant James Duncan say they might have found a new reason for an Erie County judge to block the prosecution from seeking the death penalty against Duncan -- Duncan's low IQ.

In a motion filed in Erie County Court, Duncan's lawyers, Nicole Sloane and Jamie Mead, have renewed their objections to the prosecution's plans to seek the death penalty in connection with Nikkia Sawyer's 2011 stabbing death.

The prosecution claims torture, attempted rape and other felonies supposedly committed by Duncan merit the death penalty in the case. But Sloane and Mead maintain they have been provided virtually no evidence of those crimes.

They want Judge Daniel Brabender -- who previously denied a similar motion -- to bar the death penalty based on the lack of so-called aggravating factors.

They said if Brabender again allows the prosecution to proceed with the death penalty, they want him to allow them to hire a forensic pathologist to test the prosecution's inference that Sawyer may have still been alive when she was repeatedly stabbed.

They said they also plan to petition the court for funds to explore whether Duncan's low IQ makes him ineligible for the death penalty.

In a footnote, Sloane explained the defense investigation recently uncovered IQ scores for Duncan that would require the court to bar the death penalty.

Rulings from the U.S. Supreme Court and the Pennsylvania Supreme Court have barred the execution of the developmentally disabled because it violates the Eighth Amendment, which prohibits cruel and unusual punishment. The courts said the punishment of death can neither deter nor punish those who do not have the mental capacity to learn from their mistakes or control their impulses.

Sawyer's partially naked body was found June 21, 2011, in her fourth-floor apartment at Highpoint Towers, 2314 Sassafras St.

Duncan, whom she knew, lived on the fifth floor of the building.

Police used DNA and fingerprints to charge him in February with homicide, aggravated assault, possessing an instrument of crime, recklessly endangering another person and abuse of a corpse.

They said Duncan, 32, stabbed the 27-year-old Sawyer about 50 times and left her on her bed, with her hands and feet bound and with underwear stuffed in her mouth.

The renewed objection to the death penalty marks the latest move by Duncan's court-appointed legal team, which also recently successfully petitioned Brabender to approve funds for a DNA expert to analyze the body fluids of Duncan and another man found at the scene.

Still unresolved is a dispute over Highpoint Towers surveillance recordings police obtained immediately after Sawyer's body was discovered.

Early in the investigation, police copied three short excerpts. But when they later tried to copy the entire recording, they said they discovered the recording device had malfunctioned and encrypted the data.

Sloane and Mead asked Brabender to throw out the case because the evidence had been lost.

Brabender instead gave the prosecution time to try to recover the data. If that fails, he has said the device must be turned over to the defense so they might try to recover the material.

Mead is a board member and shareholder of the Times Publishing Company, which publishes the Erie Times-News and GoErie.com.

LISA THOMPSON can be reached at 870-1802 or by e-mail. Follow her on Twitter at twitter.com/ETNthompson.